Police v Kalepo [2007] WSSC 7 (16 February 2007)

IN THE SUPREME COURT OF SAMOA
HELD AT APIA
BETWEEN
POLICE
Prosecution
AND
PAEPAE KALEPO
male of Ulutogia, Aleipata
Accused
Counsel: K Koria and L Sua for Prosecution
Accused in person
Sentence: 16 February 2007

SENTENCE

The accused who is a 36 year old male is appearing for sentence on the charge of rape which carries a maximum penalty of life imprisonment. To the charge he has pleaded guilty at the earliest opportunity.

As it appears from the summary of facts prepared by the prosecution and admitted by the accused, on Tuesday afternoon, 26 October 2006, the victim who is a 9 year old female was playing in her family’s yard at Aleisa. She then went over to the house of the accused who was her family’s next door neighbour. The accused who was inside his house instructed the victim to remove her clothing but she did not reply. The accused then removed the victim’s shorts and panty, led the victim into a bedroom, lay her on a bed, spread her legs apart and rubbed his penis on her vagina. After this, the accused instructed the victim to lie on the floor. He then inserted his penis inside her vagina until he ejaculated. A T-shirt was then used by the accused to wipe away semen from the victim’s pelvic area after which she got up, put her clothes back on and then left the house of the accused.

As it appears from the victim impact assessment report, after this incident the victim complained to her mother about feeling a stinging sensation between her legs. The mother says that since this incident the victim sleeps continuously which is something she did not do before, and she does not speak much any more. The victim also shows fear and hesitation when she talks about this incident.

The victim impact assessment report also shows that before this incident the victim was an outgoing, active and happy child. After this incident, the victim is not the same as before. She now shows signs of stress and fatigue and her attitude has changed. She no longer takes an interest in her family’s activities and no longer listens to her mother when told to do chores around the house. The victim, now, also shows little interest in anyone she does not know and a general reluctance to speak about anything. It is evident the victim has suffered psychological harm, the effects of which are likely to remain with her for a long time. The victim is presently attending primary school.

For the victim‘s family, they are having a hard time coping with the knowledge that the youngest member of their family has been the victim of a sexual assault.

The accused is married with three children. He completed secondary school at Form 5. At the time of this offence he was employed at the plantation of the victim’s uncle at Aleisa and was staying in a house next door to the house of the victim’s family. His employment was terminated when this incident occurred. He is now living with his wife’s family at Ulutogia, Aleipata. He is also a first offender.

In Police v Talisoa Mika [2006] WSSC 61 where the accused was sentenced to 7 years imprisonment on a charge of rape, I said:

"In general, considerations of retribution and deterrence take priority over considerations of rehabilitation in rape cases. This is because of the very serious nature of rape and the need by society to protect women from such crime. So lengthy custodial sentences are generally imposed not only to reflect the gravity of the crime of rape and its condemnation by society, but also to punish the offender, deter him from re-offending, and deter like minded people from committing rape."

In the case of Police v Fuifatu Tapua’i Sione [2006] WSSC 40, where the accused was sentenced to a total term of 12 years imprisonment on one count of rape and six counts of incest committed on his own daughter, I said:

"Whilst the sentence for each case must be determined by the facts of the particular case, sentences passed in similar cases provide a useful guidance as to the range of sentences which the Court has imposed in previous cases of a similar nature. This is a legitimate consideration in passing sentence."

The principles stated in the cases of Police v Talisoa Mika and Police v Fuifatu Tapua’i Sione are also applicable to this case. The importance of maintaining consistency in sentences in similar cases is that it reflects the notion of equal justice. There may, of course, be disparities because of different factual situations between cases. But unjustified disparities between the levels of sentences in similar cases would undermine confidence in the sentencing process.

In passing sentence in this case, I take into account in mitigation of penalty the accused’s plea of guilty at the earliest opportunity, his expression of remorsefulness, and the fact that he is a first offender. On the other hand I must also take into account the seriousness of the crime of rape, the young age of the victim, the age difference of 27 years between the accused and the victim, the psychological impact of the offence on the victim, and the need for deterrence in this type of case. The sentence to be imposed should also reflect society’s denunciation and condemnation of this type of offence.

In weighing all the circumstances, the accused is convicted and sentenced to 7 years imprisonment. The range of sentences in rape cases where the victim is a young child but there is no parental relationship with the accused will now have to be reconsidered in view of this decision. Too often the victims of rape cases which come before the Court are young female children.

CHIEF JUSTICE

Solicitors
Attorney General’s Office, Apia for prosecution